EXHIBIT 10.9
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of the
27th day of August, 2002, by and between PRG-Schultz International, Inc., a
Georgia corporation ("PRGX"), Berkshire Fund V, Limited Partnership, a
Massachusetts limited partnership, and Berkshire Investors LLC, a Massachusetts
limited liability company (each, a "Holder," and with any permitted transferees
thereof, "Holders").
RECITALS:
WHEREAS, concurrently herewith, the Holders, Howard Schultz, Andrew
Schultz and certain affiliates thereof ("Schultz Sellers") have entered into a
Stock Purchase Agreement dated August 16, 2002 (the "Schultz Stock Purchase
Agreement") pursuant to which the Holders have purchased 4,338,507 shares of
PRGX common stock from Schultz Sellers;
WHEREAS, concurrently herewith, Berkshire Fund V, Limited Partnership,
a Massachusetts limited partnership, and Berkshire Investors LLC, a
Massachusetts limited liability company (including permitted transferees, each a
"Berkshire Fund") and an affiliate of the Schultz Sellers have entered into
promissory notes, dated as of August 27, 2002, pursuant to which the Berkshire
Funds have agreed to lend the Schultz Sellers an aggregate of $12,610,584,
secured by shares of PRGX common stock held by the Schultz Sellers (the
"Berkshire Notes");
WHEREAS, in order to facilitate the sales to Holder, PRGX has agreed to
grant Holder the rights contained herein.
NOW, THEREFORE, in consideration of the mutual promises, covenants,
representations and warranties contained herein and of the mutual benefits to be
derived herefrom, and intending to be legally bound, the parties hereto agree as
follows:
ARTICLE I
DEMAND REGISTRATION
(a) If PRGX shall receive, at any time on or after January 24,
2004, a written request from the Holder(s) of Registrable Securities (as
hereinafter defined) that PRGX file a firm commitment, underwritten registration
statement pursuant to the Securities Act of 1933, as amended (the "Securities
Act") on Form S-1 or a successor form thereto covering the registration of at
least $5 million in value of the Registrable Securities (a "Demand
Registration"), then PRGX shall use its reasonable best efforts to effect the
registration under the Securities Act on Form S-1 of all Registrable Securities
which such Holder(s) have requested to be registered. Within ten (10) business
days after receipt of any such request, PRGX shall give written notice of such
requested registration to all other
Holders and the Blum Holders (as defined below), of Registrable Securities, if
any, in accordance with Section 9.1 hereof, and shall use its reasonable best
efforts to include in such registration all Registrable Securities with respect
to which PRGX has received written requests for inclusion therein within fifteen
(15) days after the mailing of PRGX's notice; provided, however, that PRGX shall
be required to file no more than one (1) registration statement pursuant to the
provisions of this Article I(a), regardless of whether or not any Holder chooses
not to include securities in any such registration statement. The term
"Registrable Securities" means (i) the 4,338,507 shares of PRGX common stock
acquired by the Holder pursuant to the Schultz Stock Purchase Agreement, (ii)
the shares of PRGX common stock transferred to the Berkshire Funds (or their
permitted transferees) upon exercise of the put/call provisions of the Berkshire
Notes, if any (iii) the shares of PRGX common stock purchased by the Berkshire
Funds (or their permitted transferees) pursuant to a Purchase Agreement dated
August 27, 2002 between the Berkshire Funds and Blum Strategic Partners II, L.P.
("Blum") (the "Investor Purchase Agreement"), if any, (iv) any other shares of
PRGX common stock acquired after the date hereof by any Holder (or their
transferees pursuant to Article VII (i) or (ii) hereof), and (v) any other
securities of PRGX issued as (or issuable upon the conversion or exercise of any
warrant, right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange for, or in replacement of, the
Registrable Securities or resulting from a subdivision of the outstanding shares
of Registrable Securities into a greater number of shares (by reclassification,
stock split or otherwise); provided, however, that the foregoing definition
shall exclude in all cases any Registrable Securities sold by a person in a
transaction in which his or her rights under this Agreement are not assigned in
conformity with the provisions of Article VII hereof (shares acquired by Holders
pursuant to Article I(a)(i), (ii) or (iii) above and any shares issued to
Holders in respect of those shares pursuant to Article I(a)(v) above are
referred to herein as the "Berkshire Designated Shares"). Notwithstanding the
foregoing, any particular shares of PRGX common stock or other securities shall
be treated as Registrable Securities only if and so long as they have not been
(A) sold to or through a broker or dealer or underwriter in a public
distribution or a public securities transaction, or (B) sold in a transaction
exempt from the registration and prospectus delivery requirements of the
Securities Act under Section 4(1) thereof so that all transfer restrictions, and
restrictive legends with respect thereto, if any, are removed upon the
consummation of such sale. The term "Registrable Securities" shall not include
securities which are eligible for immediate sale under Rule 144(k) or Rule 145
under the Securities Act without the application of volume restrictions. The
foregoing notwithstanding, PRGX shall not be obligated to cause any registration
pursuant to this Article I(a) or Article I(c) to become effective prior to one
hundred eighty (180) days following the effective date of a PRGX- or
stockholder- initiated registration (other than a registration effected solely
to qualify an employee benefit plan or to effect a business combination pursuant
to Rule 145) or such longer period not to exceed one hundred eighty (180) days
as any underwriter thereof shall require, provided that PRGX shall use its best
efforts to achieve such effectiveness promptly following the end of such period
and PRGX shall have complied with Article II hereof with respect to such
registration to the extent applicable;
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(b) Each Demand Registration must be an underwritten, full
commitment registration. The underwriter will be selected by PRGX, subject to
the approval of a majority in interest of the Holders including Registrable
Securities in the requested registration, such approval not to be unreasonably
withheld or delayed. The right of any Holder to include its Registrable
Securities in the Demand Registration shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their securities through such underwriting shall
enter into an underwriting agreement in customary form with the underwriter or
underwriters selected for such underwriting. Notwithstanding any other provision
of this Article I, if the underwriter advises the Holders in writing that
marketing factors require a limitation on the number of shares to be
underwritten, then, subject to the provisions of Article II with respect to
Stockholder Registrations (as defined below), the number of shares of
Registrable Securities that may be included in the offering shall be allocated
among all Holders thereof in proportion (as nearly as practicable) to the amount
of Registrable Securities of PRGX originally requested to be included by each
Holder in the underwriting; provided, however, that the number of shares of
Registrable Securities to be included in such offering shall not be reduced
unless all other securities other than securities included in such registration
by Blum Holders pursuant to Article II, if any, are first entirely excluded from
the offering; and provided further, that, if a Holder has to reduce the amount
of Registrable Securities to be included in the offering, the Holders of
Registrable Securities initially requesting such Demand Registration shall be
entitled to withdraw such request and, if such request is withdrawn and Holders
pay all Registration Expenses (as hereinafter defined) in connection with such
registration, such Demand Registration shall not count as the one permitted
Demand Registration hereunder.
(c) Subject to Article I(a), if PRGX shall receive, at any
time on or after January 24, 2004, a written request from the Holder(s) of
Registrable Securities that PRGX effect a registration on Form S-3 (or on any
successor form to Form S-3 regardless of its designation), PRGX will promptly
give written notice of the proposed registration to all other Holders and the
Blum Holders and use its reasonable best efforts to effect, as soon as
practicable, such registration (and to keep such registration effective for up
to 45 days), together with all or such portion of the Registrable Securities of
any other Holder or Holders joining in such request as are specified in a
written request given within fifteen (15) days after receipt of such written
notice from PRGX; provided, however, that PRGX shall not be obligated to effect
any such registration, qualification or compliance pursuant to this Article I(c)
if: (1) Form S-3 (or any successor form to Form S-3 regardless of its
designation) is not available for such offering by the Holders; or (2) the
aggregate gross proceeds (before deduction of underwriting discounts and
commissions) of the Registrable Securities specified in such request is not at
least $2,000,000; and provided, further, that Holders may not exercise a demand
right pursuant to this Article I(c) or Article I(a) within 180 days after the
effective date of any other registration statement filed pursuant to this
Agreement or that certain Registration Rights Agreement of even date herewith
among PRGX and Blum Strategic Partners II, LP and certain of its affiliates (the
"August Registration Rights Agreement").
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(d) Notwithstanding the foregoing, if PRGX shall furnish to
Holders requesting a registration statement pursuant to this Article I, in
accordance with Section 9.1 hereof, a certificate signed by the General Counsel,
Chief Financial Officer or Chief Executive Officer of PRGX stating that, in his
good faith judgment after consultation with outside legal counsel, it would
require the disclosure of material, nonpublic information and could have a
material adverse effect on the business or operations of PRGX and its
stockholders for such registration statement to be filed pursuant to this
Article I or to be amended or supplemented in accordance with Article III(f) and
it is therefore essential to defer the filing of such registration statement or
amendment or supplement, PRGX shall have the right to defer such filing for a
period of not more than 60 days after receipt of the request of the initiating
Holders in the case of an initial filing, or not more than 60 days after the
date of delivery of such certificate in the case of an amendment or supplement;
provided, however, PRGX may only exercise this twice in any 12-month period and
provided further, however, that if a Demand Registration is delayed hereunder,
the Holders of Registrable Securities initially requesting such Demand
Registration shall be entitled to withdraw such request and, if such request is
withdrawn, such Demand Registration shall not count as one of the permitted
Demand Registrations hereunder and PRGX shall pay Registration Expenses in
connection with such registration.
ARTICLE II
PIGGYBACK REGISTRATION
Subject to Section 5.5 hereof, if there is a PRGX-initiated registration (a
"PRGX Registration") or a registration initiated by the holders of rights under
the August Registration Rights Agreement (the "Blum Holders"), or any other
stockholder of the Company with contractual rights to initiate such registration
(each a "Stockholder Registration") (other than a registration effected solely
to register an employee benefit or dividend reinvestment plan, to effect a
business combination pursuant to Rule 145 or conduct an exchange offer), PRGX
will give each Holder written notice of such registration. Upon the written
request of each Holder given within ten (10) days after mailing of such notice
by PRGX in accordance with Section 9.1, PRGX shall, subject to the provisions
below regarding underwritten registrations, cause to be registered under the
Securities Act all of the Registrable Securities that each such Holder has
requested to be registered. In connection with any offering involving an
underwriting of shares of PRGX's capital stock, PRGX shall not be required under
this Article II to include any of the Holders' securities in such underwriting
unless they accept the terms of the underwriting as agreed upon between PRGX and
the underwriters selected by it, and then only in such quantity as the
underwriters determine in their sole discretion will not jeopardize the success
of the offering. If the total amount of securities, including Registrable
Securities, to be included in such offering exceeds the amount of securities to
be sold that the underwriters determine in their sole discretion is compatible
with the success of the offering, then PRGX shall be required to include in the
offering only that number of such securities, including Registrable Securities,
which the underwriters determine in their sole discretion will not jeopardize
the success of the offering
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of the securities so included. Securities shall be excluded from a PRGX
Registration in the order set forth below:
First, the number of shares requested to be registered for the account
of persons, if any, whose rights to have their shares included in such
registration are subordinate to the rights granted pursuant to this
Agreement shall be reduced as required;
Second, the number of shares eligible to be registered for the account
of the Holders and the number of shares eligible to be registered by
the Blum Holders shall be reduced, as required, so Holders of
registration rights granted pursuant to this Agreement shall be
entitled to sell (i) if such Registrable Securities requested to be
included by such Holders include only Berkshire Designated Shares and
any shares requested to be included by Blum Holders pursuant to the
August Registration Rights Agreement include only Blum Designated
Shares (as defined in the August Registration Rights Agreement), up to
50% of the total Registrable Securities allocated for sale in the
offering by the Holders and the Blum Holders, in the aggregate, and the
Blum Holders shall be entitled to sell up to 50% of the total
Registrable Securities allocated for sale in the offering by Holders
and the Blum Holders, in the aggregate, or (ii) if such Registrable
Securities requested to be included by such Holders include any
Registrable Securities other than Berkshire Designated Shares or if any
shares requested to be included by Blum Holders pursuant to the August
Registration Rights Agreement include shares other than Blum Designated
Shares, the Holders shall be entitled to sell up to 40% of the total
Registrable Securities allocated for sale in the offering by the
Holders and the Blum Holders, in the aggregate, and the Blum Holders
shall be entitled to sell up to 60% of the total Registrable Securities
allocated for sale in the offering by Holders and the Blum Holders, in
the aggregate; provided, however, that, to the extent that the number
of shares the Holders or the Blum Holders, in the aggregate, are
entitled to register pursuant to this sentence exceeds the number that
such holders actually seek to register, then such excess shall be added
to the number of shares that the Holders or the Blum Holders,
respectively, shall be entitled to register;
Third, those shares to be included in satisfaction of any superior
contractual registration rights, if any;
Last, those shares to be included for the account of the Company, if
any.
Securities shall be excluded from a Stockholder Registration (other
than a demand registration of Purchased Shares (as defined in the August
Registration Rights Agreement) prior to January 24, 2002) in the order set forth
below:
First, those shares to be included for the account of the Company, if
any;
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Second, the number of shares requested to be registered for the account
of persons, if any, whose rights to have their shares included in such
registration are subordinate to the rights granted pursuant to this
Agreement shall be reduced as required;
Third, the number of shares eligible to be registered for the account
of the Holders and the number of shares eligible to be registered by
the Blum Holders shall be reduced, as required, so the Holders of
registration rights granted pursuant to this Agreement shall be
entitled to sell (i) if such Registrable Securities requested to be
included by such Holders include only Berkshire Designated Shares and
any shares requested to be included by Blum Holders pursuant to the
August Registration Rights Agreement include only Blum Designated
Shares, up to 50% of the total Registrable Securities allocated for
sale in the offering by the Holders and the Blum Holders, in the
aggregate, and the Blum Holders shall be entitled to sell up to 50% of
the total Registrable Securities allocated for sale in the offering by
Holders and Blum Holders, in the aggregate, or (ii) if such Registrable
Securities requested to be included by such Holders include any
Registrable Securities other than Berkshire Designated Shares or if any
shares requested to be included by Blum Holders pursuant to the August
Registration Rights Agreement include shares other than Blum Designated
Shares, the Holders shall be entitled to sell up to 40% of the total
Registrable Securities allocated for sale in the offering by the
Holders and the Blum Holders, in the aggregate, and the Blum Holders
shall be entitled to sell up to 60% of the total Registrable Securities
allocated for sale in the offering by Holders and the Blum Holders, in
the aggregate; provided, however, that, to the extent that the number
of shares the Holders or the Blum Holders, in the aggregate, are
entitled to register pursuant to this sentence exceeds the number that
such holders actually seek to register, then such excess shall be added
to the number of shares that the Holders or the Blum Holders,
respectively, shall be entitled to register;
Last, those shares to be included in satisfaction of any superior
contractual registration rights, if any.
With respect to a demand registration with respect to Purchased Shares
(as defined in the August Registration Rights Agreement) prior to January 24,
2004, all other securities to be included in such registration shall be reduced
in their entirety prior to any reduction in the number of Purchased Shares
requested to be included by the holder of such Purchased Shares.
ARTICLE III
REGISTRATION PROCEDURES
Whenever the Holders of Registrable Securities have requested that any
Registrable Securities be registered pursuant to this Agreement, PRGX will use
its reasonable best
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efforts to effect the registration and the sale of such Registrable Securities
in accordance with the intended method of disposition thereof, and pursuant
thereto PRGX will as expeditiously as practicable:
(a) Prepare and file with the Securities and Exchange Commission
("SEC") a registration statement with respect to such Registrable Securities on
Form S-1 or Form S-3 (as appropriate) or a successor form if PRGX is eligible to
use such form, or on such substitute form reasonably chosen by PRGX if it is not
so eligible, as soon as practicable, but no later than sixty (60) days from
receipt of the request, and use its reasonable best efforts to cause such
registration statement to become effective as soon as practicable after filing;
provided, however, that PRGX shall have no obligation to include securities in a
registration statement pursuant to Article II if that registration statement is
withdrawn for any reason; and
(b) Notify each Holder of the effectiveness of each registration
statement filed hereunder and prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective
until that date when all Registrable Securities covered by such registration
statement have been sold (but not before the expiration of the applicable
prospectus delivery period) or such shorter period as PRGX may notify the
Holders in the case of a Registration under Article II, and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such registration statement, and furnish, without charge, to each
seller of Registrable Securities, in accordance with Section 9.1 hereof, copies
of all correspondence between PRGX and the SEC relating to such registration;
and
(c) Furnish, without charge, to each seller of Registrable Securities
and each underwriter, if any, in accordance with Section 9.1 hereof, such number
of copies of such registration statement (including all exhibits), each
amendment and supplement thereto, the prospectus included in such registration
statement (including each preliminary prospectus) in conformity with the
requirements of the Securities Act and such other documents as such seller may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such seller; and
(d) Use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions
within the United States as the sellers or any managing underwriter shall
request, to keep such registration or qualification in effect for so long as the
registration statement is in effect and do any and all other acts and things
which may be reasonably necessary or advisable to enable such sellers to
consummate the disposition in such jurisdictions of the Registrable Securities
owned by such sellers (provided that PRGX will not be required to qualify
generally to do business or file any general consent to service of process in
any jurisdiction where it would not otherwise be required to qualify or file but
for this subparagraph); and
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(e) Use its best efforts to obtain all other approvals, covenants,
exemptions or authorizations from such governmental agencies or authorities as
may be necessary to enable the sellers of such Registrable Securities to
consummate the disposition of such Registrable Securities; and
(f) Notify each seller of such Registrable Securities promptly at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act of the happening of any event as a result of which the prospectus
included in such registration statement contains an untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances then existing, and subject to Article I(c) hereof, prepare and
file as soon as practicable with the SEC, but in no event later than thirty (30)
days after awareness of such event, and promptly notify each Holder of
Registrable Securities of the filing of, a supplement to such prospectus or an
amendment to the registration statement so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus will not contain an
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances under which they were made and in the case of an
amendment to the registration statement, use reasonable best efforts to cause it
to become effective as soon as possible; and
(g) Promptly notify each Holder selling Registrable Securities covered
by such registration statement and each managing underwriter, if any: (i) when
the registration statement, any pre-effective amendment, the prospectus or any
prospectus supplement related thereto or post-effective amendment to the
registration statement has been filed and, with respect to the registration
statement or any post-effective amendment, when the same has become effective;
(ii) of any request by the SEC or any state securities authority for amendments
or supplements to the registration statement or the prospectus related thereto
or for additional information; and (iii) of the receipt by PRGX of any
notification with respect to the suspension of the qualification of any
Registrable Securities for sale under the securities or blue sky laws of any
jurisdiction or the initiation of any proceeding for such purpose; and
(h) Upon receipt of such confidentiality agreements as PRGX may
reasonably request, make reasonably available for inspection by any seller of
such Registrable Securities covered by such registration statement, by any
underwriter, if any, participating in any disposition to be effected pursuant to
such registration statement and by any attorney, accountant or other agent
retained by any such seller or any such underwriter, all pertinent financial and
other records, pertinent corporate documents and properties of PRGX, and supply
all information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement in order to
permit them to exercise their due diligence responsibility; and
(i) Promptly prior to the filing of any document which is to be
incorporated by reference into the registration statement or the prospectus
(after the initial filing of such registration statement) and which contains
information regarding the selling Holders,
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provide copies of such document to counsel for the selling Holders of
Registrable Securities and to each managing underwriter, and make such changes
in such document concerning the selling Holders prior to the filing thereof as
counsel for such selling Holders or underwriters may reasonably request; and
(j) Furnish to each Holder participating in the offering and the
managing underwriter, without charge, at least one signed copy of the
registration statement and any post-effective amendments thereto (which may be a
photocopy or conformed copy of such signed document), excluding all documents
incorporated therein by reference and all exhibits; and
(k) Use its best efforts to furnish, at the request of any Holder
requesting registration of Registrable Securities pursuant to this Agreement, on
the date that such Registrable Securities are delivered to the underwriters for
sale in connection with a registration pursuant to this Agreement, if such
securities are being sold through underwriters, or, if such securities are not
being sold through underwriters, on the date that the registration statement
with respect to such securities becomes effective: (i) a copy of an opinion or
opinions, dated such date, of the counsel representing PRGX for the purposes of
such registration, in form and substance as is customarily given by company
counsel to the underwriters in an underwritten public offering, addressed to the
underwriters, if any, and (ii) a letter dated such date, from the independent
certified public accountant of PRGX, in form and substance as is customarily
given by independent certified public accountants to underwriters in an
underwritten public officering, addressed to the underwriters, if any, and to
the Holders requesting registration of Registrable Securities;
(l) Use its best efforts to cooperate with the Holders requesting
registration of Registrable Securities pursuant to this Agreement in the
disposition of the Registrable Securities covered by such registration
statement, including without limitation in the case of an underwritten offering,
causing key executives of the Company and its subsidiaries to participate under
the direction of the managing underwriter in a "road show" scheduled by such
managing underwriter in such locations and of such duration as in the judgment
of such managing underwriter are appropriate for such underwritten offering;
(m) Cooperate with the selling Holders of Registrable Securities and
the managing underwriter, if any, to facilitate the timely preparation and
delivery of certificates not bearing any restrictive legends representing the
Registrable Securities to be sold, and cause such Registrable Securities to be
issued in such denominations and registered in such names in accordance with the
underwriting agreement prior to any sale of Registrable Securities to the
underwriters or, if not an underwritten offering, in accordance with the written
instructions of the selling holders of Registrable Securities at least three
business days prior to any sale of Registrable Securities; and
(n) In the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or the initiation of any proceeding
for such purpose, or of any order suspending or preventing the use of any
related prospectus or suspending the qualification of any common stock included
in such registration statement for sale in any
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jurisdiction, PRGX will promptly notify each seller of such order, and subject
to Article I(c) hereof, will use its reasonable best efforts to promptly obtain
the withdrawal of such order; and
(o) If the offering is to be underwritten, enter into any necessary
agreements in connection therewith (including an underwriting agreement
containing customary representations, warranties and agreements); and
(p) Cause all such Registrable Securities registered pursuant hereto to
be listed on each securities exchange or other quotation service on which
similar securities issued by PRGX are then listed; and
(q) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereto and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
ARTICLE IV
REGISTRATION EXPENSES
As used herein, "Registration Expenses" shall mean all expenses
incurred in connection with all registrations, (other than underwriters'
commissions and discounts) filings or qualifications pursuant hereto, whether or
not such registration becomes effective or remains effective for the applicable
period contemplated hereby, including (without limitation) all registration,
filing and qualification fees, printers' and accounting fees and fees and
disbursements of counsel for PRGX, excluding the fees and expenses of counsel
for the Holders. All Registration Expenses shall be borne by PRGX.
ARTICLE V
UNDERTAKINGS OF THE HOLDERS OF REGISTRABLE SECURITIES AND LOCK-UP
5.1 Suspension of Sales. If any Registrable Securities are included in
a registration statement pursuant to the terms of this Agreement, the Holder
thereof will not until further notice from PRGX delivered in accordance with
Section 9.1 hereof that a registration statement or prospectus is corrected or
updated in accordance with Article III(f) effect sales thereof after receipt of
written notice from PRGX pursuant to Article III(f) and delivered in accordance
with Section 9.1 hereof of the occurrence of an event specified therein in order
to permit PRGX to correct or update the registration statement or prospectus in
accordance with Article III(f), provided that the obligations of PRGX with
respect to maintaining any registration statement current and effective shall be
extended by a period of days equal to the period said suspension is in effect.
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5.2 Compliance. If any Registrable Securities are being registered in
any registration pursuant to this Agreement, the Holder thereof will comply with
all anti-stabilization, manipulation and similar provisions of Section 10 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and any rules
promulgated thereunder by the SEC.
5.3 Termination of Effectiveness. At the end of the period during which
PRGX is obligated to keep a registration statement current and effective as
described herein, each Holder of Registrable Securities included in the
registration statement shall discontinue sales thereof pursuant to such
registration statement, unless such Holder has received written notice from PRGX
delivered in accordance with Section 9.1 hereof of its intention to continue the
effectiveness of such registration statement with respect to any of such
securities which remain unsold.
5.4 Furnish Information. It shall be a condition precedent to the
obligations of PRGX to take any action pursuant to this Agreement with respect
to the Registrable Securities of any selling Holder that such Holder shall
furnish to PRGX such information regarding itself, the Registrable Securities
held by it, and the intended method of disposition of such securities as shall
reasonably be required to effect the registration of such Holder's Registrable
Securities or as shall otherwise reasonably be requested by PRGX, which request
shall be delivered in accordance with Section 9.1 hereof; provided, however,
that this shall not affect the rights of, or the obligations of PRGX under this
Agreement to, any other Holder. Notwithstanding the foregoing, PRGX shall have
no obligation with respect to any registration requested pursuant to Article I
of this Agreement if, as a result of the application of the preceding sentence,
the Registrable Securities of any Holder are excluded from any Demand
Registration and the value of the Registrable Securities to be included in the
registration is therefore reduced below $5 million; provided, however, that in
such event, the remaining Holders requesting such Demand Registration shall be
entitled to (i) add additional securities so that the Registrable Securities to
be included in the registration are increased to $5 million; or (ii) withdraw
such request and, if such request is withdrawn and the Holders pay all
Registration Expenses in connection with such registration, such Demand
Registration shall not count as the permitted Demand Registration hereunder.
PRGX shall only be required to pay the Registration Expenses of such withdrawn
registration if the Holders inform PRGX that such registration shall count as
its one Demand Registration hereunder.
5.5 Lock-Up. Other than in connection with transfers (a) pursuant to
Article VII(i), (ii) or (iii) to transferees who agree to be bound by the
provisions of this Agreement, (b) that have been consented to in writing by the
Company in advance, (c) pursuant to a third party tender offer that is
recommended by the Board of Directors of the Company, or (d) pursuant to a
merger, consolidation or reorganization to which the Company is a party, and
notwithstanding the provisions of Article II hereof, the Holders agree that they
will not at any time prior to January 24, 2004, sell, gift, transfer or
otherwise dispose of, or enter into any collar, swap, prepaid forward, or other
hedging transaction that would reduce the risk of ownership of, (i) the
4,338,507 shares of PRGX common stock acquired by the Holders pursuant to the
Schultz Stock Purchase Agreement, (ii) the shares of PRGX common stock
11
transferred to the Berkshire Funds (or their permitted transferees) upon the
exercise of the put/call provisions of the Berkshire Notes and any shares of
PRGX common stock obtained by the Berkshire Funds (or their permitted
transferees), pursuant to the Pledge Agreement contemplated by the Berkshire
Notes, upon a default under the Berkshire Notes, (iii) the shares of PRGX common
stock purchased by the Berkshire Funds (or their permitted transferees) pursuant
to the Investor Purchase Agreement, and (iv) any other securities of PRGX issued
as (or issuable upon the conversion or exercise of any warrant, right or other
security which is issued as) a dividend or other distribution with respect to,
or in exchange for, or in replacement of, these securities or resulting from a
subdivision of the outstanding shares of these securities into a greater number
of shares (by reclassification, stock split or otherwise).
ARTICLE VI
UNDERWRITTEN REGISTRATIONS
If requested by the underwriters for a Demand Registration, PRGX shall
enter into a customary underwriting agreement with the underwriters. Such
underwriting agreement shall be reasonably satisfactory in form and substance to
the Holders and shall contain such representations and warranties by, and such
other agreements on the part of, PRGX and such other terms as are generally
included in the underwriting agreements of nationally recognized underwriters,
including, without limitation, indemnities and contribution agreements; provided
however, that PRGX shall not be required to make any representations or
warranties with respect to written information provided by a selling Holder for
inclusion in the registration statement. Such underwriting agreement shall also
contain such representations and warranties by the participating Holders as are
generally included in agreements of that type, including, without limitation,
indemnities and contribution agreements, customary in transactions of that type
(but excluding any representations or warranties with respect to the Company).
Any provisions in any such underwriting agreement with respect to contribution
and indemnity shall supersede and render null and void the indemnification and
contribution provisions of this Agreement with respect to the securities
contained in the underwriting.
ARTICLE VII
ASSIGNMENT OF REGISTRATION RIGHTS
The rights of a Holder of Registrable Securities set forth in this
Agreement (including a Holder who received the Registrable Securities by an
assignment permitted pursuant to this Agreement), including the right to cause
PRGX to register Registrable Securities and pay the Registration Expenses to the
extent set forth in Article IV, may be assigned by such Holder, but only to the
extent that Registrable Securities are concurrently
12
transferred to the assignee, only to (i) its successors-in-interest by merger,
consolidation and similar transaction, (ii) an Affiliate of such Holder or its
successor-in-interest which acquires Registrable Securities (including, without
limitation, Berkshire Fund VI, Limited Partnership) or one non-affiliate of such
Holder, in an aggregate amount not to exceed 45,872 Registrable Securities,
(iii) pursuant to the Investor Purchase Agreement, or (iv) a sale of at least
1,000,000 Registrable Securities to a third party, provided in each instance the
assignee agrees to be bound by the terms of this Agreement. For purposes of this
Agreement, the term "Affiliate" means any person that, directly or indirectly,
controls or is controlled by or is under common control with the Holder or its
successor-in-interest, as applicable. For purposes of this definition, control
of a person means the power, directly or indirectly, to direct or cause the
direction of the management and policies of such person, whether by contract or
otherwise and, in any event and without limiting the foregoing, any person
owning fifty percent (50%) or more of the voting securities of another person
shall be deemed to control that person. Notwithstanding the foregoing, other
than as provided in parts (i), (ii) and (iii) of the first sentence, in no event
may less than 20% of all Registrable Securities be transferred at any time.
ARTICLE VIII
INDEMNIFICATION
8.1 Indemnification by PRGX. PRGX shall indemnify and hold harmless,
with respect to any registration statement filed by it, to the fullest extent
permitted by law, each Holder of Registrable Securities covered by such
registration statement, its officers, directors, employees, agents, affiliates
and general or limited partners (and the directors, officers, employees,
affiliates and agents thereof) and each other person, if any, who controls or is
alleged to control such Holder within the meaning of the Securities Act
(collectively, the "Holder Indemnified Parties") against all losses, claims,
damages, liabilities and expenses, joint or several (including reasonable fees
of counsel and any amounts paid in settlement effected with PRGX's consent,
which consent shall not be unreasonably delayed or withheld), to which any such
Holder Indemnified Party may become subject under the Securities Act, the
Exchange Act, any other federal law, any state or common law, any rule or
regulation promulgated thereunder or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions or proceedings, whether commenced
or threatened, in respect thereof) are caused solely by (i) any untrue statement
or alleged untrue statement of a material fact contained in any registration
statement in which such Registrable Securities were included as contemplated
hereby or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading or
(ii) any untrue statement or alleged untrue statement of a material fact
contained in any preliminary, final or summary prospectus, together with the
documents incorporated by reference therein (as amended or supplemented if PRGX
shall have filed with the SEC any amendment thereof or supplement thereto), or
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they
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were made, not misleading, or (iii) any violation by PRGX of the Securities Act,
the Exchange Act, any other federal law, any state or common law, or any rule or
regulation promulgated thereunder in connection with any such registration; and
in each such case, PRGX shall reimburse each such Holder Indemnified Party for
any reasonable legal or any other expenses incurred by any of them in connection
with investigating or defending any such loss, claim, damage, liability,
expense, action or proceeding, provided, however, that PRGX shall not be liable
to any such Holder Indemnified Party in any such case to the extent that any
such loss, claim, damage, liability or expense (or action or proceeding, whether
commenced or threatened, in respect thereof) arises out of or is based upon any
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement or amendment thereof or supplement thereto
or in any such preliminary, final or summary prospectus in reliance upon written
information furnished to PRGX by or on behalf of any such Holder Indemnified
Party expressly for use in the preparation thereof, and provided further, that
PRGX shall not be liable to any such Holder Indemnified Party with respect to
any preliminary prospectus to the extent that any such loss, claim, damage,
liability or expense of such Holder Indemnified Party results from the fact that
such Holder Indemnified Party sold Registrable Securities to a person to whom
there was not sent or given, at or before the written confirmation of such sale,
a copy of the prospectus (excluding documents incorporated by reference) or of
the prospectus as then amended or supplemented (excluding documents incorporated
by reference) if PRGX has previously furnished copies thereof to such Holder
Indemnified Party in compliance with this Agreement and the loss, claim, damage,
liability or expense of such Holder Indemnified Party results from an untrue
statement or omission of a material fact contained in such preliminary
prospectus which was corrected in the prospectus (or the prospectus as then
amended or supplemented) and such corrected document provides a defense to the
claim upon which such loss claim, damage, liability or expense was based. Such
indemnity and reimbursement of expenses and obligations shall remain in full
force and effect regardless of any investigation made by or on behalf of the
Holder Indemnified Parties and shall survive the transfer of such securities by
such Holder Indemnified Parties. In connection with an underwritten offering,
PRGX shall indemnify such underwriters, their officers and directors and each
person who controls such underwriters (within the meaning of the Securities Act)
to the same extent as provided above with respect to the indemnification of the
Holders of Registrable Securities.
8.2 Indemnification by Holders. Each Holder of Registrable Securities
participating in any registration hereunder shall severally, and not jointly,
indemnify and hold harmless, to the fullest extent permitted by law, PRGX, its
directors, officers, employees, affiliates and agents, and each Person who
controls or is alleged to control PRGX (within the meaning of the Securities
Act) (collectively, "PRGX Indemnified Parties") against all losses, claims,
damages, liabilities and expenses, joint or several (including reasonable fees
of counsel and any amounts paid in settlement effected with such Holder's
consent, which consent shall not be unreasonably delayed or withheld) to which
any PRGX Indemnified Parties may become subject under the Securities Act, the
Exchange Act, any other federal law, any state or common law or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (or actions or
proceedings, whether commenced or threatened, in respect thereof) are caused by
(i) any untrue statement or
14
alleged untrue statement of a material fact contained in any registration
statement in which such Holder's Registrable Securities were included or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary, final or summary prospectus, together with the documents
incorporated by reference therein (as amended or supplemented if PRGX shall have
filed with the Commission any amendment thereof or supplement thereto), or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading (in the
cases described in clauses (i) and (ii) of this Section 8.2, such
indemnification by such Holder of Registrable Securities shall apply only to the
extent that such untrue statement or omission is contained in any information
furnished in writing by such Holder expressly for use in the preparation of the
documents described in such clauses (i) and (ii)), (iii) any violation by such
Holder of the Securities Act, the Exchange Act, any other federal law, any state
or common law, or any rule or regulation promulgated thereunder applicable to
such Holder and relating to action of or inaction by such Holder in connection
with any such registration other than in connection with any such violation
relating to an untrue statement or omission of a material fact relating to
information provided by PRGX contained in a preliminary prospectus or prospectus
hereunder and (iv) with respect to any preliminary prospectus delivered in a
non-underwritten offering, the fact that such Holder sold Registrable Securities
to a person to whom there was not sent or given, at or before the written
confirmation of such sale, a copy of the prospectus (excluding the documents
incorporated by reference) or of the prospectus as then amended or supplemented
(excluding documents incorporated by reference) if PRGX has previously furnished
copies thereof to such Holder in compliance with this Agreement and the loss,
claim, damage, liability or expense of such PRGX Indemnified Party results from
an untrue statement or omission of a material fact relating to information
provided by such Holder contained in such preliminary prospectus which was
corrected in the prospectus (or the prospectus as amended or supplemented) and
such corrected document provides a defense to the claim upon which such loss
claim, damage, liability or expense was based. Such indemnity obligation shall
remain in full force and effect regardless of any investigation made by or on
behalf of PRGX Indemnified Parties (except as provided above) and shall survive
the transfer of such securities by such Holder.
8.3 Conduct of Indemnification Proceedings. Promptly after receipt by
an indemnified party under Section 8.1 or 8.2 above of written notice delivered
in accordance with Section 9.1 hereof of the commencement of any action, suit,
proceeding, investigation or threat thereof with respect to which a claim for
indemnification may be made pursuant to this Section, such indemnified party
shall, if a claim in respect thereto is to be made against an indemnifying
party, give written notice delivered in accordance with Section 9.1 hereof to
the indemnifying party of the threat or commencement thereof, provided, however,
that the failure to so notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party except to the extent
that the indemnifying party is actually prejudiced by such failure to give
notice in accordance with Section 9.1 hereof. If any such claim or action
referred to under Section 8.1 or 8.2 above is
15
brought against any indemnified party and it then notifies the indemnifying
party of the threat or commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other indemnifying party similarly notified, to assume the defense thereof
with counsel reasonably satisfactory to such indemnified party. After notice
delivered in accordance with Section 9.1 hereof from the indemnifying party to
such indemnified party of its election so to assume the defense of any such
claim or action, the indemnifying party shall not be liable to such indemnified
party under this Article VIII for any legal expenses of counsel or any other
expenses (other than reasonable costs of investigation) subsequently incurred by
such indemnified party in connection with the defense thereof, unless the
indemnifying party has failed to assume the defense of such claim or action or
to employ counsel reasonably satisfactory to such indemnified party.
Notwithstanding the foregoing, the indemnified party shall have the right to
retain its own counsel, with the fees and expenses to be paid by the
indemnifying party, if representation of such indemnified party by the counsel
retained by the indemnifying party would be inappropriate due to differing
interests between such indemnified party and any other party represented by such
counsel in such action. The indemnifying party shall not be required to
indemnify the indemnified party with respect to any amounts paid in settlement
of any action, proceeding or investigation entered into without the written
consent of the indemnifying party. No indemnifying party shall consent to the
entry of any judgment or enter into any settlement without the consent of the
indemnified party unless (i) such judgment or settlement does not impose any
obligation or liability upon the indemnified party other than the execution,
delivery or approval thereof, and (ii) such judgment or settlement includes as
an unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a full release and discharge from all liability in respect
of such claim and a full release of all persons that may be entitled to or
obligated to provide indemnification or contribution under this Article.
The obligations of PRGX and the Holders of Registrable Securities under
this Article VIII shall survive the completion of any offering of Registrable
Securities in a registration statement under this Agreement and the termination
of this Agreement.
8.4 Contribution. If the indemnification provided for in this Article
VIII is unavailable to or insufficient to hold harmless an indemnified party
under Section 8.1 or 8.2, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of the losses,
claims, damages, liabilities or expenses (or actions or proceedings in respect
thereof) referred to in Section 8.1 or 8.2 in such proportion as is appropriate
to reflect the relative fault of the indemnifying party on the one hand and the
indemnified party on the other in connection with the statements, omissions,
actions or inactions which resulted in such losses, claims, damages, liabilities
or expenses. The relative fault of the indemnifying party and the indemnified
party shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
indemnifying party or the indemnified party, any action or inaction by any such
party, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement, omission, action or inaction.
The amount paid or payable by an indemnified party as a result of the losses,
16
claims, damages, liabilities or expenses (or actions or proceedings in respect
thereof) pursuant to this Section 8.4 shall be deemed to include any reasonable
legal or other expenses incurred by such indemnified party in connection with
investigating or defending any such action or claim (which shall be limited as
provided in Section 8.3 if the indemnifying party has assumed the defense of any
such action in accordance with the provisions thereof) which is the subject of
this Section 8.4. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. Promptly after receipt by an indemnified party under this
Section 8.4 of written notice delivered in accordance with Section 9.1 hereof of
the commencement of any action, suit, proceeding, investigation or threat
thereof with respect to which a claim for contribution may be made against an
indemnifying party under this Section 8.4, such indemnified party shall, if a
claim for contribution in respect thereto is to be made against an indemnifying
party, give written notice in accordance with Section 9.1 hereof to the
indemnifying party of the commencement thereof (if the notice specified in
Section 8.3 has not been given with respect to such action), provided, however,
that the failure to so notify the indemnifying party shall not relieve it from
any obligation to provide contribution which it may have to any indemnified
party under this Section 8.4, except to the extent that the indemnifying party
is actually prejudiced by the failure to give notice in accordance with Section
9.1 hereof. The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8.4 were determined by pro rata allocation
or by any other method of allocation which does not take account of equitable
considerations referred to in this Section 8.4.
The provisions of this Section 8.4 shall be in addition to any other
rights to indemnification or contribution which any indemnified party may have
pursuant to law or contract, shall remain in full force and effect regardless of
any investigation made by or on behalf of any indemnified party, and shall
survive the transfer of securities by any such party; provided that any
indemnification of similar scope entered into pursuant to an underwriting
agreement in connection with an offering contemplated herein shall supersede
this Article VIII.
8.5 Limitation on Liability of Holders of Registrable Securities. The
liability of each Holder in respect of any indemnification or contribution
obligation of such Holder arising under this Article 8 shall not in any event
exceed an amount equal to the net proceeds to such Holder (after deduction of
all underwriters' discounts and commissions and all other expenses paid by such
Holder in connection with the registration in question) from the disposition of
the Registrable Securities disposed of by such Holder pursuant to such
registration.
8.6 Indemnification and Contribution of Underwriters. In connection
with any underwritten offering contemplated by this Agreement which includes
Registrable Securities, PRGX and all sellers of Registrable Securities included
in any registration statement shall agree to customary provisions for
indemnification and contribution (consistent with the other provisions of this
Article VIII) in respect of losses, claims, damages, liabilities and expenses of
the underwriters of such offering.
17
ARTICLE IX
MISCELLANEOUS
9.1 Notices. All notices, requests and other communications hereunder
shall be in writing and will be deemed to have been duly given and received by
any party hereto and any permitted assignees thereof (i) when personally
delivered to the appropriate Notice Person (as defined below), (ii) when sent by
telefax to the appropriate Notice Person at the number listed below for such
Notice Person, (iii) two (2) business days after the day on which the same has
been delivered prepaid to an international courier service for delivery to the
appropriate Notice Person, or (iv) five (5) business days after the deposit in
the United States mail, registered or certified, return receipt requested,
postage prepaid, for delivery to the appropriate Notice Person, in each case
addressed to the following addresses:
(i) if to PRGX: PRG-Schultz International, Inc.
2300 Windy Ridge Parkway
Suite 100 North Tower
Atlanta, Georgia 30339-8426
Attn: Clinton McKellar, Jr., Esq.
General Counsel
Telephone: (770) 779-3900
Facsimile: (770) 779-3034
copy to: Arnall Golden Gregory LLP
2800 One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309
Attn: Jonathan Golden, Esq.
Telephone: (404) 873-8705
Facsimile: (404) 873-8701
(ii) If to any Berkshire Fund, to: Berkshire Partners LLC
One Boston Place
Boston, MA 02108-4401
Telephone: (617) 227-0050
Telecopy: (617) 227-6105
Attention: Ross M. Jones
18
copy to: Ropes & Gray
One International Place
Boston, MA 02110
Telephone: (617) 951-7000
Telecopy: (617) 951-7050
Attention: David C. Chapin, Esq.
Jane D. Goldstein, Esq.
PRGX or any Holder (collectively, the "Notice Persons") from time to time may
change its or his or her address, telefax number or other information for the
purpose of notices to the specified parties by giving notice specifying such
change to the other Notice Persons.
9.2 Assignment. Subject to and without limiting the provisions of
Article VII hereof, neither this Agreement nor any right, interest or obligation
hereunder may be assigned by any party hereto without the prior written consent
of the other parties hereto and any attempt to do so will be void. Subject to
the preceding sentence, this Agreement is binding upon, inures to the benefit
of, and is enforceable by the parties hereto and their respective successors and
permitted assigns.
9.3 Waiver. Any term or condition of this Agreement may be waived at
any time by the party that is entitled to the benefit thereof, but no such
waiver shall be effective unless set forth in a written instrument duly executed
by or on behalf of the party waiving such term or condition. No waiver by any
party of any term or condition of this Agreement, in any one or more instances,
shall be deemed to be or construed as a waiver of the same or any other term or
condition of this Agreement on any future occasion.
9.4 Amendment. This Agreement may be amended, supplemented or modified
only by a written instrument duly executed by or on behalf of each party hereto.
9.5 Remedies. Each party hereto will be entitled to enforce any right
granted to such party by any provision of this Agreement specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
9.6 Entire Agreement. This Agreement supersedes all prior discussions
and agreements among the parties hereto with respect to the subject matter
hereof and contains the sole and entire agreement among the parties hereto with
respect to the subject matter hereof.
19
9.7 Captions. The captions used in this Agreement have been inserted
for convenience of reference only and do not define or limit the provisions
hereof.
9.8 Exhibits and Schedules. All exhibits and schedules, if any,
referred to in this Agreement, all attachments to such exhibits or schedules,
and any other attachment to this Agreement are hereby incorporated by reference
into this Agreement and hereby are made a part of this Agreement as if set out
in full herein.
9.9 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to a contract
executed and performed in such State, without giving effect to the conflicts of
laws principles thereof.
9.10 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together will constitute one and the same instrument.
9.11 Severability. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
9.12 No Third Party Beneficiary. This Agreement shall not confer any
rights or remedies upon any person other than the parties hereto and their
respective successors and permitted assigns.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
PRG-SCHULTZ INTERNATIONAL, INC., a Georgia corporation
By: /s/ Clinton McKellar, Jr.
-------------------------------------------------
Name: Clinton McKellar, Jr.
------------------------------------------------
Title: General Counsel and Secretary
-----------------------------------------------
BERKSHIRE FUND V, LIMITED PARTNERSHIP
By: Fifth Berkshire Associates LLC, its General Partner
By: /s/ Ross M. Jones
-------------------------------------------------
Name: Ross M. Jones
------------------------------------------------
Title: Managing Director
-----------------------------------------------
BERKSHIRE INVESTORS LLC
By: /s/ Ross M. Jones
-------------------------------------------------
Name: Ross M. Jones
------------------------------------------------
Title: Managing Director
-----------------------------------------------
21